Opinion 18-117

September 6, 2018

Digest:         (1) Once a judicial candidate’s total remaining unexpended campaign funds are deemed de minimis, the candidate may (a) use these funds to purchase two judicial robes and/or (b) donate the balance to a not-for-profit entity that operates a childcare program at the courthouse for children of litigants in that court, with instructions that the funds be used for that purpose.

(2) Judicial candidates who, after the conclusion of their window period, wish to donate their de minimis unexpended campaign funds to an entity other than those specifically referenced in one of our published opinions should write to the Advisory Committee on Judicial Ethics for guidance.

Rules:          22 NYCRR 100.0(Q); 100.5(A)(1)(c); 100.5(A)(1)(h); 100.5(A)(2); 100.5(A)(5)-(6); Opinions 16-97; 16-29/16-50; 14-148.

Opinion:

         The inquiring judicial candidate has twice attempted to return his/her unexpended campaign funds to donors and now has $2,400 remaining in his/her campaign account. The candidate asks if he/she may use these funds to purchase two judicial robes and donate the rest to a day care center located in his/her courthouse, which is “operated for the children of litigants who do not have access to childcare.” The funds would be donated to the local not-for-profit entity that operates the day care center, “with the instructions that the funds be spent on the center.”

         A judge or non-judge candidate for elective judicial office may participate in his/her own campaign for judicial office during the applicable window period, subject to certain limitations (see 22 NYCRR 100.0[Q] [defining “window period”]; 100.5[A][1][c]; 100.5[A][2]). Among other restrictions, judicial candidates must not use or permit the use of campaign contributions for the private benefit of the candidate or others (see 22 NYCRR 100.5[A][5]), must not make political contributions (see 22 NYCRR 100.5[A][1][h]), and must not permit the use of campaign contributions or personal funds to pay for campaign-related goods or services for which fair value was not received (see 22 NYCRR 100.5[A][6].

         A judicial candidate must “dispose of any remaining campaign funds and close his/her campaign account as soon as practicable following the end of the window period” (Opinion 16-29/16-50). They cannot be retained or rolled over for use in a subsequent campaign (see Opinion 14-148).

         A candidate whose unexpended campaign funds are $2,500 or less on conclusion of the window period may immediately treat them as de minimis and expend them for any lawful non-political purpose connected to judicial office consistent with prior opinions (see Opinion 16-29/16-50).

         Conversely, a candidate whose unexpended campaign funds initially exceed $2,500 must direct his/her campaign committee to “make one reasonable, bona fide attempt to return all the funds pro rata to contributors” (see id.). Thereafter, any remaining funds may be treated as de minimis, regardless of amount, and may likewise be expended as permitted by prior opinions (see Opinion 16-97).

         Either way, at this point, the inquiring candidate may treat his/her remaining funds as de minimis under our prior opinions.¹

         While judicial campaign funds may not ordinarily be donated to any person or entity, including a charitable organization (see Opinion 16-29/16-50), we previously carved out one “single, narrow exception” so that judicial candidates who had only de minimis unexpended campaign funds remaining could donate them to the Catalyst Public Service Fellowship Program (id.). We explained our rationale as follows (id.):

Significantly — and unlike many other public service fellowship programs — it does not support internships in other states, in the federal system, or in government agencies that seldom appear in any court. In the Committee’s view, using unexpended judicial campaign funds in a manner that will enable law students to serve as interns for judges in the Unified Court System would not be an impermissible “private benefit” (see 22 NYCRR 100.5[A][5]), but, rather, a public benefit intertwined with judicial office which directly inures to the benefit of our state’s judicial system as a whole. With respect to the internships for prosecutorial and defense agencies, the Catalyst Public Service Fellowship Program funds interns for law offices on both sides of criminal trials in the New York State courts, which provides a similar public benefit.

         The present inquiry invites us to expand this narrow exception. We conclude that a not-for-profit day care center operated in the courthouse for the benefit of litigants is likewise “a public benefit intertwined with judicial office which directly inures to the benefit of our state’s judicial system as a whole” (Opinion 16-29/16-50).

         Accordingly, the candidate may, as requested, use his/her remaining de minimis unexpended campaign funds to purchase two judicial robes and may thereafter donate any remaining funds to the not-for-profit entity that operates the day care, with an instruction that the funds must be directed to the childcare program located at the courthouse for children of litigants in that court.

         Judicial candidates who, after the conclusion of their window period, wish to donate their de minimis unexpended campaign funds to an entity other than those specifically authorized in one of our published opinions should write to us for guidance.

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         ¹We note that he/she could have done so after a single bona fide reasonable effort to return the funds pro rata to contributors (see Opinion 16-97).